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Introduction: In the realm of estate planning and inheritance, the state of Illinois offers an intriguing provision known as the spousal share elective. This provision allows surviving spouses to make a choice regarding their inheritance, providing them with certain rights and options. In this blog post, we will delve into the details of the spousal share elective in Illinois, exploring its purpose, eligibility criteria, and the implications it holds for individuals navigating the complex landscape of estate planning.

What is the Spousal Share Elective? The spousal share elective in Illinois is a legal provision designed to safeguard the interests of surviving spouses when it comes to inheriting the estate of their deceased partner. Unlike some states that adhere strictly to predetermined rules of intestate succession, Illinois allows surviving spouses to exercise their right to choose a portion of the deceased spouse’s estate.

Key Features and Eligibility Criteria:

  1. Choice of Elective Share Percentage: Illinois provides surviving spouses with the option to choose a specific percentage of the deceased spouse’s estate as their elective share. This percentage can vary, but it typically ranges between one-third and one-half of the estate.
  2. Waiver and Agreement: It’s important to note that spouses can waive their right to the spousal share elective through a prenuptial or postnuptial agreement. This allows couples to customize their estate planning according to their unique circumstances and preferences.
  3. Protection Against Disinheritance: The spousal share elective acts as a protective measure against complete disinheritance. Even if the deceased spouse’s will or estate plan attempts to exclude the surviving spouse, the elective share ensures that they are entitled to a predetermined portion of the estate.
  4. Calculation of the Elective Share: Calculating the elective share involves considering the net value of the deceased spouse’s estate, including both probate and non-probate assets. This comprehensive approach aims to provide surviving spouses with a fair and equitable portion of the marital assets. When a decedent passes away with other descendants (such as children), the spouse is generally entitled to 1/3 of the estate, however, if the decedent does not have descendants the spouse is generally entitled to 1/2 of the estate.

Implications and Considerations:

  1. Balancing Testator’s Intent and Spousal Protections: The spousal share elective strikes a balance between respecting the wishes of the deceased spouse (testator) and ensuring that the surviving spouse is not left without adequate provision.
  2. Legal Assistance and Documentation: Navigating the complexities of the spousal share elective often requires legal expertise. Seeking the assistance of an experienced estate planning attorney is crucial for understanding the implications, drafting agreements, and ensuring compliance with Illinois law.
  3. Reviewing and Updating Estate Plans: Individuals and couples should regularly review and update their estate plans, especially in the face of life-changing events such as marriage, divorce, or the birth of children. This ensures that the spousal share elective aligns with their current intentions.

Conclusion: The spousal share elective in Illinois stands as a testament to the state’s commitment to balancing the rights of surviving spouses with the autonomy of individuals in estate planning. Understanding the intricacies of this provision is essential for couples seeking to secure the financial well-being of their loved ones and navigate the complex landscape of inheritance laws in the state.


About the Author

Attorney Michael LaCava has a remarkable passion for helping people navigate the intricate realms of real estate and estate planning, and his journey is a testament to his unwavering dedication to both his professional pursuits and his role as a devoted family man.

Since 2013, Michael has honed his skills to become a trusted advisor for individuals seeking guidance in their property transactions and estate planning endeavors. His expertise extends beyond the technicalities of the law, as he is genuinely committed to understanding his clients’ unique needs and ensuring their financial and legal well-being.

Outside the professional realm, Michael finds comfort and joy in his role as a family man. He is a loving husband to his wife, Melanie, and a devoted father to three awesome kids. In his free time, you’ll find Michael and his family immersed in a variety of activities. From camping trips that bring them closer to nature, to fishing adventures that instill a love for the outdoors, to sporting events where  Michael enthusiastically cheers on and coaches his kids in their various sports, Michael cherishes these moments as opportunities to connect and share his life’s journey with family and friends.


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